SUPREME COURT OF VICTORIA€¦ · defraud by 'ghost terminal skimming' - Imprisonment more...
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Supreme Court of Victoria – Recent Judgments Bulletin No. 16/2018 Page - 1 - [Produced by Supreme Court Library [email protected]]
SUPREME COURT OF VICTORIA
RECENT JUDGMENTS BULLETIN
ISSUE NO. 16/2018 Below is a list of Victorian Supreme Court unreported judgments received in the Library from 20 to 31 August 2018. Catchwords are included when provided on the cover sheet of the unreported judgment. Enquiries regarding unreported judgments can be forwarded to the Supreme Court Library at: [email protected] or telephone (03) 9603 6282. TABLE OF CONTENTS
Court of Appeal .......................................................................................................... 2
Commercial Court ...................................................................................................... 6
Common Law Division .............................................................................................. 9 Criminal Division ..................................................................................................... 14
Supreme Court of Victoria – Recent Judgments Bulletin No. 16/2018 Page - 2 - [Produced by Supreme Court Library [email protected]]
COURT OF APPEAL
ADMINISTRATIVE LAW - Appeal on question of law - Procedural fairness -
Practical content of fairness - Magistrates' Court - Charges of unlicensed driving -
Respondent filed written objections to jurisdiction - Asserted common law right to
travel - Magistrate dismissed jurisdictional objection without hearing oral argument -
Whether denial of procedural fairness - Self-represented litigant - Objection clearly
articulated - Objection self-evidently groundless - No necessity for oral argument -
Appeal allowed - Criminal Procedure Act 2009 s 272(1), Road Safety Act 1986 s
18(1)(a).
Roberts, Paul v Harkness, Zenaan and Magistrates' Court of Victoria
Maxwell P, Beach and Niall JJA
[2018] VSCA 215
29 August 2018
ADMINISTRATIVE LAW - Judicial review - Merit Protection Board decision
confirming annulment of teacher's employment - Contract stated employment to be
confirmed or annulled at end of probation period - Period extended - Statutory
instruments providing power to extend probation - Whether probation period
lawfully extended - Whether probationary clause of contract void as fetter on future
exercise of discretionary statutory power - Education and Training Reform Act 2006,
ss 2.4.2, 2.4.8, 5.10.4.
CONTRACTS - Public service - Contract of employment - Incorporation by
reference of statute and ministerial order - Construction of public service contracts to
take place against statutory regime - Director-General of Education v Suttling (1987)
162 CLR 427, applied.
ADMINISTRATIVE LAW - Reasons for decision - Whether Board required to
provide reasons – Remedy for failure to comply - No error of law - Sherlock v Lloyd
(2010) 27 VR 434, applied – Administrative Law Act 1978, s 8.
State of Victoria v Tutos, Marius Lucian and The Merit Protection Boards
Maxwell P, Beach and McLeish JJA
[2018] VSCA 213
27 August 2018
ADMINISTRATIVE LAW - Judicial review - Procedural fairness - Hearing rule -
Bias rule – Self-represented litigant - Appeal to County Court against summary
conviction - Litigant disputed judge's procedural ruling - Litigant refused to
participate in hearing - Disrespectful and aggressive conduct - Whether judge obliged
to provide additional assistance - Whether apprehended bias – No lack of procedural
fairness - Appeal allowed.
Doughty-Cowell, Rhys v Kyriazis, Vasilios and County Court of Victoria
Maxwell P, Beach and Niall JJA
[2018] VSCA 216
29 August 2018
Supreme Court of Victoria – Recent Judgments Bulletin No. 16/2018 Page - 3 - [Produced by Supreme Court Library [email protected]]
CRIMINAL LAW - Appeal - Application for leave to appeal against conviction -
Armed robbery - Whether doctrine of 'continuous appropriation' capable of being
invoked in particular circumstances - R v Hale (1978) 68 Cr App 415 considered -
Application for leave granted.
Putrus, Mazin v The Queen
Weinberg JA
[2018] VSCA 218
29 August 2018
CRIMINAL LAW - Appeal - Sentence - Fresh evidence - Criminal damage, arson,
theft - Sentenced to 5 years' imprisonment, 3 year non-parole period - Continuing
criminal enterprise offences - Disgruntled employee sabotaged plant and equipment -
Reduction of moral culpability on the basis of mental disorder - Further expert report
obtained after sentencing - Fresh diagnosis of Autism Spectrum Disorder - Fresh
evidence ground conceded - No alteration in sentence warranted - Orders for
cumulation merciful - Leave to appeal granted - Appeal dismissed.
Wilson, Bret v The Queen
Maxwell P, Priest and Niall JJA
[2018] VSCA 219
29 August 2018
CRIMINAL LAW - Appeal - Sentence - One charge of attempting to possess a
commercial quantity of an unlawfully imported border controlled drug, 2 charges of
attempting to possess a marketable quantity of such a drug - Sentenced to 16 years, 6
months' imprisonment with non-parole period of 12 years, 6 months - Whether
individual sentences, orders for cumulation, total effective sentence and non-parole
period manifestly excessive - Appeal dismissed - Brown v The Queen [2017] VSCA
162 considered.
Blango, Frank v The Queen
Whelan and Kyrou JJA
[2018] VSCA 210
24 August 2018
CRIMINAL LAW - Application for leave to appeal against conviction - Armed
robbery and intentionally causing serious injury - Whether judge erred in admitting
hearsay evidence of co-offender - Leave granted.
EVIDENCE - Admissibility - Hearsay evidence - Maker of representations not
available – Where maker of representations was co-offender - Whether
representations made in circumstances that made it likely that representations reliable
- Evidence Act 2008 s 65(2)(d) - Sio v The Queen (2016) 259 CLR 47 considered.
Vitale, Craig v The Queen
Niall JA
[2018] VSCA 212
23 August 2018
Supreme Court of Victoria – Recent Judgments Bulletin No. 16/2018 Page - 4 - [Produced by Supreme Court Library [email protected]]
CRIMINAL LAW - Application for leave to appeal against sentence - One charge of
manslaughter - Sentenced to eleven years' imprisonment with a non-parole period of
seven years and six months - Whether sentence manifestly excessive - Applicant
played active role in organised fight - Application for leave refused.
Wan, Shengliang v The Queen
Weinberg JA
[2018] VSCA 217
28 August 2018
CRIMINAL LAW - Application for leave to appeal against sentence - Proposed
ground manifest excess - Trafficking in a commercial quantity of a drug of
dependence - 3.5kg of 1,4-butanediol - Relevance of profitability of drug of
dependence - Offences committed whilst on bail and subject to community
correction order - Application refused - DPP v Maxwell [2013] VSCA 50 considered
Ellis, Sarah v The Queen
Whelan and Beach JJA
[2018] VSCA 221
31 August 2018
CRIMINAL LAW - Director's appeal - Sentence - One charge of manslaughter by
unlawful and dangerous act and one charge of prohibited person possess a firearm -
Respondent shot partner in head at close range - No challenge to sentencing judge's
finding that respondent did not intend gun to discharge when he pulled trigger and
therefore did not intend to cause physical harm – Whether finding that offence 'tends
towards a lower level of gravity of manslaughter' constituted specific error - Whether
sentence manifestly inadequate - Appeal dismissed.
Director of Public Prosecutions [DPP] v Osborn, Brandon
Beach, McLeish and Weinberg JJA
[2018] VSCA 207
23 August 2018
CRIMINAL LAW - Interlocutory appeal - Refusal of permanent stay - Fair trial -
Trial of alleged sexual offences - Delay - Alleged offending occurred between 42 and
33 years ago - Six child complainants - Whether proposed trial unacceptably unfair -
Whether irremediable prejudice - Refusal of stay open - Application for leave to
appeal refused.
CRIMINAL LAW - Interlocutory appeal - 35 charges and multiple uncharged acts -
Six complainants - Whether indictment overloaded.
Kenny, Jayson (a Pseudonym) v The Queen
Priest JA, Taylor AJA and Weinberg JA
[2018] VSCA 220
31 August 2018
Supreme Court of Victoria – Recent Judgments Bulletin No. 16/2018 Page - 5 - [Produced by Supreme Court Library [email protected]]
CRIMINAL LAW - Sentence - Appellant pleaded guilty to one charge of armed
robbery and one charge of theft - Appellant and co-offender robbed liquor store
armed with knives – Appellant sentenced to five years' imprisonment with a non-
parole period of three years - Whether sentence manifestly excessive - Whether
appellant's youth, deprived background and Aboriginality appropriately taken into
account in mitigation - Whether appellant's participation in Koori Court process
given sufficient weight - R v Morgan (2010) 24 VR 230 considered - Appeal
dismissed.
CRIMINAL LAW - Koori Court - Principles to be applied when determining weight
to be given to participation in sentencing conversation - Whether judge should seek
feedback from Elders after sentencing conversation - Role of 'Gladue' reports -
Gladue v The Queen [1999] 1 SCR 688 referred to.
Honeysett, Damian v The Queen
Priest, Beach and Hargrave JJA
[2018] VSCA 214
28 August 2018
CRIMINAL LAW - Sentence - Application for leave to appeal - Conspiracy to
defraud by 'ghost terminal skimming' - Imprisonment more burdensome by reason of
ill health - Whether mitigating factor overlooked - Whether markedly different
sentence would follow had the matter been taken into account - No different sentence
should be imposed - Leave granted, appeal dismissed - R v Koumis (2008) 18 VR
434 and - R v Van Boxtel (2005) 11 VR 258 applied - Criminal Procedure Act 2009
s 281.
CRIMINAL LAW - Sentence - Manifest excess - Not arguable - Leave refused.
Smith, Tony v The Queen
Whelan and Kyrou JJA
[2018] VSCA 208
24 August 2018
CRIMINAL LAW - Sentence - Application for leave to appeal - Non-Parole period
fixed 80 per cent of head sentence - No 'usual' non-parole period - Seriousness of
offending warranted the non-parole period fixed - Leave granted, appeal dismissed -
Power v The Queen (1974) 131 CLR 623, R v Krasnov (1995) 125 FLR 120 applied
- DPP v Josefski (2005) 13 VR 85, Kumova v The Queen (2012) 37 VR 538, Hili v
The Queen (2010) 242 CLR 520 considered - Sentencing Act 1991 (Vic) s 11(3).
McLean, Joshua v The Queen
Whelan and Kyrou JJA
[2018] VSCA 209
24 August 2018
CRIMINAL LAW - Sentence - Application for leave to appeal against sentence -
Contempt - Failure to comply with court order - Defiant, contumacious, continuing
contempt - Sentenced to term of imprisonment of 3 months - Errors asserted by
applicant not reasonably arguable - Manifest excess - Not reasonably arguable that
sentence manifestly excessive - No reasonable prospect of less severe sentence being
imposed - Application for leave to appeal refused.
Harris, Chad v Marubeni Equipment Finance (Oceania) P/L
Whelan and Beach JJA
[2018] VSCA 211
23 August 2018
Supreme Court of Victoria – Recent Judgments Bulletin No. 16/2018 Page - 6 - [Produced by Supreme Court Library [email protected]]
COMMERCIAL COURT
CORPORATIONS - Failure to comply with a statutory demand - Presumption of
insolvency enlivened - Part 5.4 of the Corporations Act 2001 (Cth) - Plaintiffs
contend they are 'unquestionably solvent' and that threatened winding up applications
would plainly fail - Injunction sought to restrain creditor making any application for
winding up.
EQUITY - Interlocutory injunction - Allegation of abuse of process in the technical
sense described in Williams v Spautz (1992) 174 CLR 509 and under the 'second
branch' of Fortuna Holdings Pty Ltd v Deputy Commissioner of Taxation (Cth)
[1978] VR 83 - Whether 'second branch' remains available in light of ASIC v
Lanepoint Enterprises Pty Ltd (receivers and managers appointed) (2011) 244 CLR 1
- Whether prima facie case of abuse of process made out.
A G Coombs P/L (ACN 005 653 332) and A G Coombs (NSW) P/L (ACN 134 239
768) v M & V Consultants P/L (ACN 079 957 387 (in liquidation)
Sloss J
[2018] VSC 468
22 August 2018
LEASES AND TENANCIES - Whether retail premises lease - Effect of permitted use
provisions under head-lease and sub-lease - Sofos v Coburn (1992) V ConvR ¶54-439
- Fitzroy Dental Pty Ltd v Metropole Management Pty Ltd [2013] VSC 344 - IMCC
Group (Australia) Pty Ltd v CB Cold Storage Pty Ltd [2017] VSCA 178 - Access
Solutions International Pty Ltd v Gamet Pty Ltd [2017] VCC 1563 - Retail Leases Act
2003, ss 4, 81 and 94.
PRACTICE AND PROCEDURE - Determination of preliminary questions - Supreme
Court (General Civil Procedure) Rules 2015, r 47.04 - Murphy v State of Victoria and
Linking Melbourne Authority (2014) 45 VR 119.
Koga Nominees P/L (ACN 005 167 779) v Loscam Australia P/L (ACN 006 440
991);
Pacific Metal Group P/L (ACN 130 588 546) and Mourad, Haysam
Croft J
[2018] VSC 455
28 August 2018
LEGAL PRIVILEGE - Evidence at trial - Notes made by witness in preparation for
giving evidence - Documents used to try to revive memory of the witness - Whether
established particular parts of documents used to try to revive memory - meaning of
"about a fact or opinion" - Evidence Act 2008 (Vic), ss 119, 122(6).
Cargill Australia Ltd (ACN 004 684 173) v Viterra Malt P/L (ACN 096 519 658) &
Ors and Cargill, Incorporated & Ors (No 11)
Elliott J
[2018] VSC 453
15 August 2018
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PRACTICE AND PROCEDURE - Application for recusal on the basis of
apprehended bias - Re JRL; ex parte CJL (1986) 161 CLR 342; Helljay Investments
Pty Ltd v Deputy Commissioner of Taxation (1999) 166 ALR 302 - Ebner v Official
Trustee in Bankruptcy (2000) 205 CLR 337.
Burkett, Paul v Bendigo and Adelaide Bank Ltd (ACN 068 049 178); Bendigo and
Adelaide Bank Ltd (ACN 068 049 178) and ABL Nominees P/L (ACN 106 756 521)
as trustee for the Lighthouse Trust No 12 v Burkett, Paul
Croft J
[2018] VSC 457
28 August 2018
PRACTICE AND PROCEDURE - Application for recusal on the basis of
apprehended bias - Re JRL; ex parte CJL (1986) 161 CLR 342; Helljay Investments
Pty Ltd v Deputy Commissioner of Taxation (1999) 166 ALR 302 - Ebner v Official
Trustee in Bankruptcy (2000) 205 CLR 337.
Bendigo and Adelaide Bank Ltd (ACN 068 049 178) v Redmond, William Hanron
Croft J
[2018] VSC 458
28 August 2018
PRACTICE AND PROCEDURE - Confidentiality - Plaintiff by counterclaim alleged
that defendant by counterclaim had breached a commercial agreement by failing to
adequately invest in, promote and develop certain products - Representative sample of
documents - Whether nature of information concerned and competitive relationship
between parties warrants documents being subject to a confidentiality regime over and
above the usual Harman undertaking – Balance between the commercial sensitivity of
the document, the forensic importance of the document to the litigation, the potential
harm of disclosure, and the risk of prejudice and injustice to the party bearing the
burden of the confidentiality regime - Terms of confidentiality regime - Mobil Oil v
Guina Developments [1996] 2 VR 34, applied - IOOF Holding v Maurice Blackburn
(No 2) [2016] VSC 594, applied - Tiered confidentiality regime imposed.
Fonterra Brands Australia P/L (ACN 095 181 669) and Bonland Cheese Trading
P/L (CAN 001 148 992) v Bega Cheese Ltd (ACN 008 358 503)
Daly AsJ
[2018] VSC 471
24 August 2018
PRACTICE AND PROCEDURE - Discovery - Confidential documents - Production -
Produced to external legal practitioners and experts subject to confidentiality
undertakings - Inspection sought by in-house counsel - Need for documents to be
disclosed to in-house counsel not demonstrated - Application refused.
Cargill Australia Ltd (ACN 004 684 173) v Viterra Malt P/L (ACN 096 519 658) &
Ors and Cargill, Incorporated & Ors (No 13)
Elliott J
[2018] VSC 478
21 August 2018
Supreme Court of Victoria – Recent Judgments Bulletin No. 16/2018 Page - 8 - [Produced by Supreme Court Library [email protected]]
PRACTICE AND PROCEDURE - Order of evidence at trial - Subpoena's to give
evidence issued by plaintiff to third parties - Application by plaintiff to leave open its
case pending the calling of evidence in the defendants' and third parties' cases -
Possibility of plaintiff calling third parties as witnesses in its case pursuant to
subpoenas if not called in third parties' cases - Considerable delay in proceeding to
date - Some prejudice to parties inevitable - Most efficient and timely alternative -
Leave granted - Civil Procedure Act 2010 (Vic) ss 7, 9, 47, 49.
Cargill Australia Ltd (ACN 004 684 173) v Viterra Malt P/L (ACN 096 519 658) &
Ors and Cargill, Incorporated & Ors (No 12)
Elliott J
[2018] VSC 454
15 August 2018
PRACTICE AND PROCEDURE - Summary judgment - Defendant admits debt -
Civil Procedure Act 2010 (Vic), s 61 - Application for summary judgment allowed.
PRACTICE AND PROCEDURE - Interest on judgment sum - Claim by successful
plaintiff for entitlement to be paid interest under the Penalty Interest Act 1983 (Vic) -
Supreme Court Act 1986 (Vic), s 58 - Whether a statutory demand constitutes a
'demand for payment' - Whether demand need be served on all parties - Whether
'good cause to the contrary' shown for not ordering interest from earliest proper
demand - Whether four and a half year delay between demand and issuing
proceedings constitutes 'good cause to the contrary' - Interest period reduced -
Whether interest rate should be reduced - Interest rate not reduced.
Cumner, Victor Leslie v Bird, John; Bird, Sharon and JSB Equipment P/L (ACN
093 740
768)
Matthews JR
[2018] VSC 443
17 August 2018
Supreme Court of Victoria – Recent Judgments Bulletin No. 16/2018 Page - 9 - [Produced by Supreme Court Library [email protected]]
COMMON LAW DIVISION
ADMINISTRATIVE LAW - Judicial review - Opinion of a Medical Panel -
Assessment of whether ongoing incapacity for work was still work-related -
Lymphoedema in left arm, right arm and left chest - Whether Panel's statement of
reasons adequate - Whether findings of fact were open on the evidence - Error
established - Panel's opinion quashed - Questions remitted to differently constituted
Panel.
Morrison, Wendy v Melbourne Pathology P/L; Downes-Brydon, Dr Jenny;
Thevathasan,
Dr Mano and Bourke, Dr John
Richards J
[2018] VSC 477
27 August 2018
ADMINISTRATIVE LAW - Judicial Review of a Medical Panel decision -
Jurisdictional error - Alleged misapplication of the AMA Guides to the Evaluation of
Permanent Impairment (4th edition) - Whether the panel failed to take into account a
relevant consideration - Wrongs Act 1958 (Vic) Pt VBA - Minister for Aboriginal
Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 - HJ Heinz Company Australia
Limited & Anor v Kotzman & Ors [2009] VSC 311 (31 July 2009) - Wingfoot
Australia Partners Pty Ltd & Anor v Kocak & Ors (2013) 252 CLR 480.
Pickett, Natalie v Parks Victoria; Apteso P/L; Gibbons, Associate Professor Peter
(Convener of Medical Panels) and Medical Panel constituted by Kotzman, Dr
David and
Elsner, Mr Keith
Keogh J
[2018] VSC 473
24 August 2018
AVIATION - Carriage by air - Claim under the Civil Aviation (Carriers' Liability)
Act 1959 (Cth) - Plaintiff injured on international flight - Whether pt VBA of the
Wrongs Act 1958 (Vic) applies - Operation of s 79(1) Judiciary Act 1903 (Cth) -
Whether pt VBA is applicable to the plaintiff's case - Whether Commonwealth law
"otherwise provides" - Agtrack (NT) Pty Limited v Hatfield (2005) 223 CLR 251
applied - Zicherman v Korean Airlines Co Ltd 516 US 217 (1996) and Casey v Pell-
Air Aviation Pty Ltd [2015] NSWSC 566 (15 May 2015) distinguished.
Di Falco, Lina v Emirates
Keogh J
[2018] VSC 472
24 August 2018
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CONTRACT - Interpretation - Principles of construction of commercial contract -
What was the amount of the debt assigned under a deed of assignment?
PROPERTY - Whether the assignment of a mortgage also vests rights under separate
loan agreements in the assignee - Effect of s 46 of Transfer of Land Act 1958 (Vic) -
French v Queensland Premier Mines Pty Ltd [2006] VSCA 287 considered.
CONVEYANCING - Whether mortgagee entitled to recover interest for period
between settlement and clearance of cheque.
DEBTOR and CREDITOR - Principles to be applied when a cheque is accepted in
payment of a debt.
Fuji Xerox Australia P/L (ACN 000 341 819) v Thoi, Cuong Vinh & Ors
Riordan J
[2018] VSC 483
29 August 2018
COSTS - Leave to discontinue proceeding - Rule 63.15 of the Supreme Court
(General Civil Procedure) Rules 2015 (Vic) - No adjudication of claims on the merits
- Whether costs should be payable on an indemnity rather than standard basis -
Whether plaintiff had a proper or reasonable basis for commencing and maintaining
the proceeding - Alleged breaches of overarching obligations under Civil Procedure
Act 2010 (Vic) not made out - Plaintiff did not have proper or reasonable basis for
maintaining the proceeding after 6 January 2018 - indemnity costs ordered for period
after that date - Plaintiff's rejection of two Calderbank offers not unreasonable in the
circumstances - Discretion to make non-party costs order - Costs order sought
against sole director and shareholder of plaintiff - Not established that non-party was
a 'real party' to the litigation - Section 24 Supreme Court Act 1986 (Vic) - Sections
10, 18, 29, 56 Civil Procedure Act 2010 (Vic) - Knight v FP Special Assets Limited
(1992) 174 CLR 178 - Gdanski v Palms Court Management Pty Ltd [2017] VSCA
348 - Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2)
[2005] VSCA 298 - Course v Hannan & Ors [2018] VSC 401.
Linchi Group P/L (ACN 146 504 716) v Wang, Wen Yong and New Eastern Group
P/L (ACN 082 692 680)
Matthews JR
[2018] VSC 482
31 August 2018
CRIMINAL LAW - Crimes Mental Impairment - Application for further extended
leave - Whether the safety of the applicant or members of the public will not be
seriously endangered – Application granted - Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997 (Vic), ss 39, 40, 57.
In the matter of an application under s 57(1) of the Crimes (Mental Impairment
and
Unfitness to be Tried) Act 1997 and In the matter of an application for extended
leave
by "D G" (No 2)
Macaulay J
[2018] VSC 469
22 August 2018
Supreme Court of Victoria – Recent Judgments Bulletin No. 16/2018 Page - 11 - [Produced by Supreme Court Library [email protected]]
CRIMINAL LAW - Indictment - Validity of indictment - Signature of indictment by
Crown Prosecutor - Crown Prosecutor ceasing to hold office prior to filing of
indictment - Criminal Procedure Act 2009 s 159.
JUDICIAL REVIEW - Indictment - Consequences of invalid indictment - Consent
orders sought - Appropriate judicial review remedies.
Director of Public Prosecutions [DPP] v Roote, Kelly and The County Court of
Victoria
Ginnane J
[2018] VSC 496
31 August 2018
INJUNCTIONS - Interim injunction - Imminent television broadcast - Potentially
defamatory publication - Applicable principles - Public interest - Free speech -
Grounds for supposing that defendant may succeed upon the ground of truth -
Application dismissed.
Dinh, Jason v Nine Network Australia Pty Ltd
Cavanough J
[2018] VSC 464
15 August 2018
JUDICIAL REVIEW - Human rights - Prisoner - Religious freedom - Whether
decision to refuse access to four Tarot cards unreasonably limited right to religious
freedom - Freedom of expression - Humane treatment when deprived of liberty -
Obligation to accord proper consideration to a relevant human right when making a
decision - Claims for declaratory relief - Prison policies - Whether application of
prison policy unlawful or unreasonable - Corrections Act 1986 ss 21, 47(1)(i);
Charter of Human Rights and Responsibilities Act 2006 ss 7(2), 14, 15, 22, 32(1) and
38(1); Corrections Regulations 2009 reg 33.
HUMAN RIGHTS - Prisoner - Religious freedom - Freedom of expression -
Humane treatment when deprived of liberty - Refusal of access to certain Tarot cards
for purposes of religious practice - Whether refusal unlawfully limited rights - Proper
consideration of human rights - Charter of Human Rights and Responsibilities Act
2006 ss 7(2), 14, 15, 22, 32(1) and 38(1).
Haigh, Paul Steven v Ryan, Brett (in his capacity as Governor of Barwon Prison)
Ginnane J
[2018] VSC 474
24 August 2018
JURY - Application to discharge jury - Evidence led from plaintiff's general
practitioner referring to an 'offer' - Whether risk to a fair trial - Any risk of prejudice
to defendant remediable by direction to jury to disregard evidence.
Tragas, Konstantinos v Bob Jane Corporation P/L (Ruling No 1)
Richards J
[2018] VSC 432
6 August 2018
Supreme Court of Victoria – Recent Judgments Bulletin No. 16/2018 Page - 12 - [Produced by Supreme Court Library [email protected]]
NEGLIGENCE - Duty of care - Police - Family violence - Alleged duty of care to
affected family members named in extant intervention orders prevent breach of
intervention orders - Alleged duty of care to women and children to prevent family
violence by repeat offenders - Alleged duty of care owed by identified senior officers
at particular police stations to affected family members named in extant intervention
orders, to ensure compliance by police within their line of command with Victorian
family violence policies - Whether such duties have no real prospect of being
successfully established - Family Violence Protection Act 2008 (Vic), preamble, s 1.
PRACTICE AND PROCEDURE - Summary judgment - Application for summary
dismissal – Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 23.01 -
Civil Procedure Act 2010 (Vic), ss 63 and 64.
Smith, Tara & Ors v State of Victoria
John Dixon J
[2018] VSC 475
27 August 2018
PRACTICE AND PROCEDURE - Discovery - Whether redacted documents subject
to public interest immunity - Whether release of documents would be injurious to
public interest - Whether plaintiff should have access in the interest of fair
administration of justice - Whether public interest outweighs desirability of
documents being released - Police training, tactics, and equipment - Inspection of
documents pursuant to Evidence Act 2008 (Vic) - State of Victoria v Brazel [2008]
VSCA 37 - Ryan v State of Victoria [2015] VSCA 353 - Plaintiff granted access to
document.
Robinson. Warwick Craig v State of Victoria
Clayton JR
[2018] VSC 470
24 August 2018
PRACTICE AND PROCEDURE - Leave to file amended statement of claim refused
as futile because claims not arguable on the pleaded facts - Whether proceeding
should be dismissed or adjourned to allow plaintiff to seek to reformulate other
claims initially sought to be made but not pursued in later iterations - Adjournment
refused - Proceeding dismissed - Civil Procedure Act 2010 (Vic), ss 63 and 64.
Chapman, Elsie v City of Greater Bendigo (No 2)
Lansdowne AsJ
[2018] VSC 486
23 July 2018
PRACTICE AND PROCEDURE - Security for costs - Whether discretion enlivened
- Weighing of discretionary factors - Significance of late timing of application -
Defendant insured – Whether ordering security would stultify proceeding - Whether
proceeding should be stayed pending provision of security.
Butler Market Gardens P/L (ACN 007 019 865) v G.G. & P.M. Burrell P/L (ACN
006 006
613) and Wilson, Gavan (trading as G.J. Wilson Contracting) (ABN 41 501 575
931)
Richards J
[2018] VSC 461
20 August 2018
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PRACTICE AND PROCEDURE - Stay - Application for stay of VCAT orders that
the respondent be granted a working with children certificate - Where applicant is
appealing VCAT decision – Whether special circumstances arise - Whether arguable
grounds of appeal - Whether not allowing the stay would render the appeal nugatory
- Application granted.
Secretary to the Department of Justice and Regulation v CZQ and Victorian Civil
and
Administrative Tribunal
Clayton JR
[2018] VSC 462
21 August 2018
PRIVILEGE - Legal professional privilege - Whether file note taken by a solicitor on
a teleconference subject to legal professional privilege - Evidence Act 2008 ss 117-
119 - Whether any privilege has been waived - Evidence Act 2008 s 125 -
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188
CLR 501.
COSTS - Whether subpoenaed non-party entitled to its costs and expenses of
complying with the subpoena - Whether subpoenaed non-party entitled to costs on an
indemnity basis - Supreme Court (General Civil Procedure) Rules 2015 r 42.11 -
ASADA v 34 Players and One Support Person (No 2) [2015] VSC 14 - Hera Project
Pty Ltd v Bisognin (No 4) [2017] VSC 270 - Charan v Nationwide News Pty Ltd
(No 6) [2017] VSC 331.
Victoria International Container Terminal t/a VICT v Construction, Forestry,
Maritime,
Mining and Energy Union (Ruling No 2)
Ierodiaconou AsJ
[2018] VSC 467
28 August 2018
PROPERTY LAW - Co-owners entered into contract to sell land - One co-owner
refuses to complete the contract - Rights of other co-owners to compel completion -
Property Law Act 1958, s 49.
PRACTICE AND PROCEDURE - Application by originating motion in Form 5C
pursuant to the special procedure - Supreme Court (General Civil Procedure) Rules
2015, r 45.05 - Whether appropriate procedure - Procedure appropriate in the
particular circumstances.
PRACTICE AND PROCEDURE - Execution of instrument by order of Court under
s 22 of the Supreme Court Act 1986 (Vic) - Circumstances where appropriate to
order.
Ventura, Giovanna and Ventura, Nina v Ventura, Roberto; Petrovski, Zoran and
Petrovski, Tatiana
Derham AsJ
[2018] VSC 485
29 August 2018
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SEARCH ORDER - Breadth of search terms - Expense and inconvenience imposed
upon respondent by search terms - Requirement to narrow scope of search terms in
order to narrow issues in dispute and ensure costs reasonable and proportionate -
Civil Procedure Act 2010 ss 23, 24.
Coachair P/L (ACN 143 743 284) v Mifsud, Lee James and National Parts &
Products P/L (ACN 605 070 013)
McDonald J
[2018] VSC 481
25 August 2018
TESTATORS FAMILY MAINTENANCE - Application under s 99 of the
Administration and Probate Act 1958 (Vic) by two sons out of deceased's eleven
children and, separately, by a third son, for an extension of time to bring a
proceeding seeking orders for provision out of deceased's estate - Estate constituted
farming land - Plaintiffs worked on the farm since around the age of 16 - Application
opposed by six out of the plaintiffs' eight siblings, being the remainder beneficiaries -
Extension of time in excess of 40 years sought - Deceased passed away in 1975 -
Will left mother a life interest with the remainder interest passing to the remainder
beneficiaries - Plaintiffs elected not to contest deceased's will in reliance on their
mother's unfulfilled promise that she would leave them her land - Plaintiff's mother
passed away in June 2014 - Proceedings instituted in August 2016 and September
2017 respectively - Finding that any claim by the plaintiffs for further provision
would have slim prospects of success - Plaintiffs were able bodied adult sons at time
of deceased's passing - Consideration of reasons for the delay - Whether the plaintiffs
had adequate appreciation of their rights to a claim under the Act when electing not
to challenge the deceased's will - Relevance of length of delay - Finding that
plaintiffs did not fail to challenge will by reason of ignorance of rights - Whether
there was an adequate explanation for the delay between the plaintiffs becoming
aware of their rights and making an application for an extension of time - Finding
that one plaintiff's delay of over two years after becoming aware of legal rights not
satisfactorily explained - No finding against the remaining two plaintiffs - Whether
any prejudice would be caused to the remainder beneficiaries - Finding that delay in
issuing proceedings has caused the remainder beneficiaries prejudice - Ansett v Moss
[2007] VSCA 161, referred to - McCann v Ward & Anor [2010] VSC 452, applied -
Harrison v Harrison [2011] VSC 459, applied - Hughes v National Trustees (1979)
143 CLR 134, applied - Coates v National Trustees Executors and Agency Co Ltd
(1956) 95 CLR 494, referred to - Bastistatos v Roads and Traffic Authority of New
South Wales (2006) 226 CLR 256, referred to - Re Nassim [1984] VR 51, referred to
– Applications dismissed.
Maher & Ors v Maher & Ors
Daly AsJ
[2018] VSC 318
21 August 2018
CRIMINAL DIVISION
Supreme Court of Victoria – Recent Judgments Bulletin No. 16/2018 Page - 15 - [Produced by Supreme Court Library [email protected]]
CRIMINAL LAW - Application for extended leave - Applicant, in 2009, at age 20
and when psychiatrically unwell, killed elderly woman - Applicant found not guilty of
murder because of mental impairment - Whether applicant or members of the public
will not be seriously endangered if applicant granted extended leave - Two
psychiatrists supportive of application – Application supported by Secretary to
Department of Health and Human Services and Attorney-General - Application
granted - Conditions imposed on extended leave in accordance with leave plan –
Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20, 21, 23,
24, 26, 28, 38C, 39, 40, 41, 47, 57, 57A, 75 & 76A.
In the matter of the Crimes (Mental Impairment and Unfitness to be Tried) Act
1997
(Vic) and In the matter of an application for extended leave by "X Y"
Croucher J
[2018] VSC 456
17 August 2018
CRIMINAL LAW - Murder - Consent mental impairment - Accused found not guilty
by reason of mental impairment - Custodial supervision order made - Nominal term of
25 years - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 21, 26,
28, 41 and 47.
The Director of Public Prosecutions [DPP] v L M
Hollingworth J
[2018] VSC 451
20 August 2018
CRIMINAL LAW - Sentence - Attempted murder - Prolonged attack - Victim
sustained multiple blunt force injuries and stab wounds - Violence against former
intimate partner - Offending occurred in context of relationship breakdown - Serious
example of offence of attempted murder – Conduct endangering persons -
Deliberately driving in front of train - Mid-range example of offence of conduct
endangering persons - Guilty plea - Degree of premeditation - No relevant criminal
history - General deterrence and denunciation - Totality - Age and ill health - Total
effective sentence of 9 years' imprisonment with non-parole period of 6 years.
The Queen v Tedford, Albert Winston
Champion J
[2018] VSC 476
24 August 2018
CRIMINAL LAW - Sentence - Manslaughter - Single stab to chest of deceased while
intoxicated - Guilty plea - Presence of remorse - Long history of alcohol and drug
abuse - Diagnosed with chronic lymphocytic leukaemia - Stable long-term prognosis -
Sentenced to 8 years' imprisonment with non-parole period of 6 years.
Director of Public Prosecutions [DPP] v Curtin, Kevin
Coghlan JA
[2018] VSC 493
11 May 2018
Supreme Court of Victoria – Recent Judgments Bulletin No. 16/2018 Page - 16 - [Produced by Supreme Court Library [email protected]]
CRIMINAL LAW - Sentence - Murder - Use of weapons - Accused with significant
criminal history - Accused with significant history of drug use - Accused on
methamphetamine at time of offence - Accused on bail at time of offence - Plea of
Guilty - Remorse - Significant weight given to general deterrence and denunciation -
Need for specific deterrence - Guarded prospects of rehabilitation - Sentence of 25
years' imprisonment with non-parole period of 20 years.
The Queen v Tang, Phuc Thien
Taylor J
[2018] VSC 460
20 August 2018
CRIMINAL LAW - Sentence - Murder, attempted murder and assist offender - Jury
verdicts – Victim intellectually impaired mother of four young children - Female
accused unable to bear children - Motive to kill victim to enable female accused to be
mother to her children - Attempt by both accused and co-offender to kill victim by
drugging with sedatives - Attempt unsuccessful – Victim violently bashed to death by
co-offender with agreement of female accused - Male accused assisted co-offender to
dispose of victim's body - High moral culpability - Premeditation - Grave motive -
Female accused low intellect - Impoverished upbringing - Parity issues.
Director of Public Prosecutions [DPP] v Lyons, Christine and Lyons, Ronald
Kaye JA
[2018] VSC 488
30 August 2018
CRIMINAL LAW - Sentence - Murder of 11-month old infant - Blunt force trauma
causing transection of the abdominal aorta, spinal fractures and laceration of the right
kidney - Very severe degree of force inflicted - Antisocial/borderline structure of
personality - History of depression - Childhood abuse - Lack of insight - No remorse -
Prospects of rehabilitation guarded - Very serious example of crime - 30 years'
imprisonment with non-parole period of 26 years.
Director of Public Prosecutions [DPP] v Noy, Jason
Coghlan JA
[2018] VSC 466
25 July 2018